Bringing powers back from Brussels - but to where?

This blog post summarises Dr Jo Hunt’s (Cardiff University, Senior Fellow UK in a Changing Europe) contribution to a roundtable on Brexit & the Environment organised by the British Academy and EUrefEnv on 30 January 2017. Looking at devolution, she investigates scope for further policy divergence across the UK after Brexit and how to deal with it.

The ongoing process of devolution of powers away from London to Cardiff, Edinburgh and Belfast has to date taken place in the context of the UK’s membership of the EU. EU membership has provided a framework for the expression of regional interests, both feeding into EU policy making upstream, and implementing EU obligations in devolved areas downstream.

EU law has at the same time set important parameters for how devolved nations exercise their powers, limiting the degree to which laws across the UK can diverge in those areas which are both devolved and Europeanised. To date, rule-making in these areas has taken place in a framework of pooled state sovereignty, and in which responsibility for action is shared. Subsidiarity has been a defining principle for the exercise of competences. In an EU context, this principle provides:

‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’. (Article 5(3) Treaty on European Union).

Repatriating powers – but where to?

On the UK’s withdrawal from the EU, powers will be repatriated to the UK – and a determination needs to be made about those powers which are in devolved areas. Under the UK’s current constitutional structures, there is a tendency towards a binary allocation of competences as either devolved, for exercise at that level, or not devolved, and for exercise at the UK level. There is little experience of shared competence as practiced in the EU.

The repatriation of powers could see an expansion in the policy competence of the devolved legislatures and governments. Powers to implement policies previously decided at the EU level could become new powers for Wales, Scotland and Northern Ireland to make their own law. However, the repatriation of competence needs to be matched by appropriate resources to be able to exercise these powers – particularly in respect to those policy areas which have previously seen subsidies and support (agriculture, rural development, and support for greening policies).

Post-Brexit, and within the scope of their devolved powers, Wales, Scotland and Northern Ireland could decide to regulate in line with EU measures, in preference to new UK laws. This may emerge if there are clear policy differences between the devolved and UK governments – such as a stronger commitment to environmental considerations.

Dealing with divergence

In some cases, a divergence in law across the UK would be legally problematic because it is linked to an otherwise exclusive competence of the UK state, such as the overlap between agriculture and international trade.

In other cases, divergence may not be appropriate, particularly in terms of the consequences for the UKs own internal market. Exercise of devolved powers across the UK may result in a patchwork of regulatory responses, making trade across the UK more burdensome and costly than it need be. The U.K.’s own economic union, and internal market are currently sustained by the operation of EU law. The requirements set at EU level to ensure free movement of goods (and services, and workers) apply to regulators within the UK, and have minimised the divergence that could emerge between Scotland, Wales, NI and England. There is no national level expression of this principle for the UK independent of EU membership.

In her speech of 17 January, the Prime Minister said that work will be needed to ensure ‘the right powers are returned to Westminster, and the right powers are passed to the devolved administrations of Scotland, Wales and Northern Ireland’. Whilst stating that ‘no decisions currently taken by the devolved administrations will be removed from them’, significantly the Prime Minister also said that ‘our guiding principle must be to ensure that - as we leave the European Union - no new barriers to living and doing business within our own Union are created, That means maintaining the necessary common standards and frameworks for our own domestic market, empowering the UK as an open, trading nation to strike the best trade deals around the world, and protecting the common resources of our islands.’

Following this, it appears that whilst legal competence in respect to the environment will flow to the devolved level, the exercise of that competence will be subject to the operating constraints of a national UK internal market. This will need to be determined – both in terms of principle and machinery for achieving it.

Dr Jo Hunt is Reader in Law at Cardiff University.

The views expressed by our authors on the British Academy blog are not necessarily endorsed by Academy, but are commended as contributing to public debate.

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